Milto v. Richardson, 18695

• Decision Date: 10 January 1956
• Docket Number: No. 18695,18695
• Citation: 131 N.E.2d 151,126 Ind.App. 148
• Parties: Phillip MILTO, Appellant, v. Henry RICHARDSON, Appellee.
• Court: Indiana Appellate Court

Page 151

131 N.E.2d 151

126 Ind.App. 148

Phillip MILTO, Appellant, v. Henry RICHARDSON, Appellee.

No. 18695.

Appellate Court of Indiana, In Banc.

Jan. 10, 1956.

Willis K. Kunz, Halbert W. Kunz, Indianapolis, for appellant.

KENDALL, Judge.

Appellant brought suit in the lower court against appellee for damages alleged to have been sustained as a result of an automobile collision at a street intersection.

At the close of appellant's case, appellee filed motion for a directed verdict which was sustained, upon which judgment was rendered.

Motion for new trial was overruled, the specifications of which are that the verdict is not sustained by sufficient evidence and is contrary to law.

Among the acts of negligence charged are the following:

(a) Failure to stop in obedience to an automatic traffic signal;

(b) Failure to keep appellee's automobile under control.

Briefly there is evidence that appellant observed two automatic signal lights facing him on the southeast and northwest corner which were red at the time when he first approached and stopped; that there were two other lights at the intersection located on the northeast and southwest corner thereof; that appellant approached the intersection in question in the middle traffic lane on the east side of East Street; that, in so doing, he stopped and remained in that position until he observed the red traffic signal turn green and then proceeded to start forward, soon observing the headlights of appellee's car proceeding from the west on McCarty Street, going east; that the color of the light facing appellant had been and still was green at the time of the accident.

The appellee was driving a DeSoto car.

A witness who was not a party to the accident was asked the following questions, and answers were given respectively:

'Q. Are you in a position to state, at the present time, as to which if any of them, did? A. I would say the DeSoto ran the red light.

'Q. Are you definite about that? A. Yes, I am.'

The question presented is whether the trial court erred in giving peremptory instruction to the jury. Such an instruction should not have been given unless there was a total lack of evidence upon some essential point or where there is no conflict in the evidence and was susceptible of but one inference and that inference being favorable to the moving party asking the instruction.

The record reveals that appellee petitioned this court for two separate extensions of time within whch to file a reply brief, both of which extensions were granted. The record further reveals that after securing the two...